Hughes v Goy

[2002] WASCA 137

HUGHES -v- GOY [2002] WASCA 137

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 137
Published:	20/05/2002
Case No:	SJA:1053/2002	Heard:	16 MAY 2002
Coram:	MILLER J	Delivered:	16/05/02
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal allowed Order for parole eligibility made
Category:	B
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Parties:	RONALD PATRICK HUGHES ASHLEY GRAHAM KEITH GOY
Catchwords:	Criminal law Sentence Parole Principles to be applied Turns on own facts
Legislation:	Sentencing Act 1995, s 89(2)
Case References:	Manson v Anderson & Anor [2001] WASCA 399 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HUGHES -v- GOY [2002] WASCA 137 CORAM : MILLER J HEARD : 16 MAY 2002 DELIVERED : 16 MAY 2002 PUBLISHED : 20 MAY 2002 FILE NO/S : SJA 1053 of 2002 BETWEEN : RONALD PATRICK HUGHES

Appellant

AND

ASHLEY GRAHAM KEITH GOY
Respondent

Catchwords:

Criminal law - Sentence - Parole - Principles to be applied - Turns on own facts

Legislation:

Sentencing Act 1995, s 89(2)

Result:

Appeal allowed

Order for parole eligibility made

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr D R Love
Respondent : Ms R N Johnston

Solicitors:

Appellant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Manson v Anderson & Anor [2001] WASCA 399

Case(s) also cited:

Nil

(Page 3)

1 MILLER J: On the hearing of this appeal I allowed the appeal and varied the sentence of imprisonment imposed by the learned Magistrate by ordering that the appellant be eligible for parole. I then undertook to give reasons for that decision and these are the reasons.

2 The appellant was charged in the Court of Petty Sessions, Kununurra that on 6 March 2002 at Kununurra he, with intent to sell to another, had in his possession a prohibited drug, namely cannabis, contrary to the provisions of s 6(1)(a) of the Misuse of Drugs Act 1981.

3 The appellant pleaded guilty to the offence and was dealt with in the Court of Petty Sessions at Kununurra on 20 March 2002. He was sentenced to 12 months' imprisonment, which sentence was backdated to 7 March 2002. No order for eligibility for parole was made.

4 The appellant appeals from the learned Magistrate's refusal to order eligiblity for parole, contending that there was an error in that regard and the learned Magistrate failed to take into account the following relevant matters:

"(i) the bias towards eligibility for parole suggested by the philosophy of the Sentencing Act 1995 (WA);

(ii) that, given the record and family circumstances of the Appellant, he was deserving of the mitigating benefit of parole upon punishment as well as the opportunity for rehabilitation;

(iii) the nature and circumstances of the offence;

(iv) the likely circumstances of the Appellant at the time of his release."

5 The facts put before the learned Magistrate at the hearing revealed that at about 8.45pm on 7 March 2002 police conducted surveillance on the appellant's home in Kununurra and observed the appellant to walk to a house approximately 100 metres from his address where, after several minutes, he left and returned briskly along the street towards his own premises. When intercepted and searched the appellant was found to have inside his shorts a clear plastic bag which contained numerous smaller bags of what appeared to be cannabis head material. The appellant was arrested and taken to Kununurra police station where the contents of the bag were emptied and found to contain 37 individual deal bags containing high quality cannabis head material. Twenty-seven bags each contained

(Page 4)

2 grams of cannabis, with a total weight of 54 grams. Ten bags each contained 3 grams of cannabis with a total weight of 30 grams.

6 The appellant was interviewed on video and confessed to having acquired the bags of cannabis with the intention of selling each for $30. He stated that he purchased the cannabis on credit with the intention of reimbursing a co-offender $900 from the sale of the cannabis he had. The Court was informed that the appellant had a record of convictions. They included previous offences for cannabis related matters. On 6 February 2002 in the Court of Petty Sessions at Kununurra the appellant was convicted of several drug offences, including possession of drugs with intent to sell or supply. He was put on a community-based order for 12 months with 120 hours of community work in relation to eight offences of possession with intent to sell or supply and was sentenced to 6 months' imprisonment, suspended for 18 months in relation to one offence of possession of a quantity of drugs with intent to sell or supply. He was fined for possessing a prohibited drug and possessing a smoking implement.

7 The appellant was represented by counsel before the learned Magistrate in the Court of Petty Sessions at Kununurra. A plea in mitigation was made on his behalf. The explanation for involvement in drug dealing was said to be the opportunity to make money to purchase food. The Court was informed that the appellant was 29 years of age in a defacto relationship with a woman who was due to have a child in August 2002. He was on unemployment benefits and was said to be endeavouring to stabilise his life both domestically and in relation to drug involvement. The Magistrate was urged to suspend any sentence of imprisonment which might be imposed, or in the alternative, to order eligibility for parole if any fixed term of imprisonment beyond 12 months was imposed.

8 The learned Magistrate dealt with the appellant in the following way:

"HIS WORSHIP: Thank you. Mr Hughes, please stand up. I've heard the plea from your counsel but like a sore tongue, it sticks out that you were in this court on the 2nd of February 2002 and another offence was committed on the 6th March barely a month and a half later, again for exactly the same thing. I hear your counsel saying responsibility. To me you can have none. Any man or woman who has children and see those children growing up, and then goes out and sells destructions. Destruction that's what you sell, particularly to the young

(Page 5)

people here in Kununurra who don't have, who have responsibility but who are very, very gullible as all of us were at that age. To you money is what counts. I've heard to buy food, there as wells failed. That may not fill up your tummy that you double yourself in size within 3 months but it certainly keeps you well clear. Not like in many countries where people, young people by the way, have to go out at 4 in the morning to 11 at night time to earn a little bit of food. I can show you a report if you wish me to that I have just got from some young people in Zimbabwee and Zambia and you would be shocked at what they have to do. Absolutely shocked but you know, you know the danger or you should know the danger being above of 30 years old or close to it. But no you go out and flog it. You have no sympathy to those kids. Well I'm not going to have any sympathy for you either. I sentence you to 12 months' imprisonment backdated to the 7th of March 2002 without parole. A breach of the suspended sentence - I sentence you to 6 months' imprisonment concurrent and I breach you of the community based order. There will be an order for the destruction. You may stand down. Thank you."

9 It is apparent from the learned Magistrate's reasons that no attention was given to the provisions of s 89(2) of the Sentencing Act 1995. That section sets out the following criteria as relevant to and requiring consideration by the Court in determining whether or not a parole eligibility order should be made:

"(a) the seriousness and nature of the offence;

(b) the circumstances of the commission of the offence;

(c) the offender's antecedents;

(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the officer would be eligible for release on parole if a parole eligibility order were made;

(e) any other reason the court decides is relevant."

10 In Manson v Anderson & Anor [2001] WASCA 399, I had occasion to deal with a very similar case in which the same Magistrate (Mr A Bloemen SM) in dealing with a matter in the Court of Petty Sessions at Halls Creek, had declined to make a parole eligibility order

(Page 6)

and had failed to give any consideration to the criteria set out in the provisions of s 89(2) of the Sentencing Act. In that decision I set out the principles relevant to the question of eligibility for parole at [13]:

"13 The principles relevant to the question of eligibility for parole were set out in Thompson v The Queen (1993) 8 WAR 387 where the Court, in dealing with s 37A of the Offenders Community Corrections Act 1963, said (at 395 - 396):

'The nature and purpose of parole and the way in which a court should enter upon a determination whether to make an order for eligibility for parole has been the subject of comment in numerous decisions. The principles are well known. However, they bear repeating. The principles which are relevant in the context of this application are as follows:
(a) once a court sentences a person to a term of imprisonment the question of eligibility for parole of the offender must be considered (s 37A(1)): see Swain v The Queen (1989) 41 A Crim R 214 at 216, per Malcolm CJ;

(b) whether to order eligibility for parole calls for the exercise of a judicial discretion: see Swain v The Queen (supra) (at 218);

(c) the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole (see Howell v The Queen (1989) 2 WAR 60 at 61-62, per Wallace J) but nonetheless the philosophy of the Act suggests a bias towards eligibility (see Howell v The Queen (supra), per Brinsden J (at 67-68); Yarran v The Queen (unreported, Supreme Court, WA, Library No 8762, 15 March 1991), per Malcolm CJ, at 4);

(d) parole serves to mitigate punishment as well as provide an opportunity for rehabilitation: see Deakin v The Queen (1984) 58 ALJR 367;

(Page 7)

(e) in determining whether an order for eligibility for parole should be made, the sentencing judge may have regard to all or any of the following:

(i) the nature of the offence;

(ii) the circumstances of the commission of the offence;

(iii) the antecedents of the offender;

(iv) circumstances which are relevant to the offender or which might, in the opinion of the judge, be relevant to the offender at the time at which the offender would become eligible to be released from prison on parole if an order for eligibility were made;

(v) any other matter that the judge thinks relevant (s 37A(3));

(f) the matter raised in item (e)(iv) above requires the sentencing judge to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other: see Archibald v The Queen (1989) 40 A Crim R 228 at 233-234, per Wallace J;

(g) the purpose of the prognosis required by item (e)(iv) above is to enable some preliminary consideration of the question, whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community: see Archibald v The Queen (supra), per Malcolm CJ (at 230);

(Page 8)

(h) the severity of a sentence is relevant to the question of eligibility for parole but even where the sentence is lenient, it is still necessary to consider the question: see Swain, per Malcolm CJ (at 217);

(i) the need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing judge and, ultimately, the Parole Board: see Yarran v The Queen (supra), per Malcolm CJ (at 4)."

11 In Manson v Anderson & Anor I concluded that had the learned Magistrate given consideration to these principles and to par (a) - par (e) of s 89(2) of the Sentencing Act, he would have made a parole eligibility order. In my view the same observations could be made in this case. On any view of it, the appellant was a candidate for parole. It could not be said that the seriousness and nature of the offence committed was such that a parole eligibility order should be denied. Nor were the circumstances of the commission of the offence such as to deny parole. The antecedents of the appellant revealed that he had a number of convictions for drug related matters, but he had never been imprisoned. Clearly he was a candidate for parole.